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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-MA-0012
In the Matter of
) Acct. No.: 201132600001
NewCom International, Inc.
) FRN: 0010802528
)
ORDER
Adopted: January 21, 2011 Released: January 21, 2011
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission ("FCC" or "Commission") and NewCom
International, Inc. ("NewCom" or "Company"). The Consent Decree
terminates an investigation by the Bureau against NewCom for possible
violations of Sections 25.271, 25.272, and 25.273 of the Commission's
rules ("Rules") regarding NewCom's apparent interference with a
licensed satellite communications system.
2. The Bureau and NewCom have negotiated the terms of the Consent Decree
that resolves this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether NewCom possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 503(b)
of the Communications Act of 1934, as amended, and Sections 0.111 and
0.311 of the Rules, the Consent Decree attached to this Order IS
ADOPTED.
6. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by both first class and certified mail, return receipt
requested, to NewCom International, Inc. at 15590 NW 15th Ave., Miami,
FL 33169 and to its counsel, Frank G. Lamancusa, Bingham McCutchen
LLP, 2020 K Street NW, Washington, DC 20006-1806.
7. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No.: EB-10-MA-0012
In the Matter of )
Acct. No.: 201132600001
NewCom International, Inc. )
FRN No.: 0010802528
)
)
CONSENT DECREE
8. The Enforcement Bureau and NewCom International, Inc., by their
authorized representatives, hereby enter into this Consent Decree for
the purpose of terminating the Enforcement Bureau's investigation
against NewCom International, Inc. for possible violations of sections
25.271, 25.272, and 25.273 of the Commission's rules regarding
NewCom's apparent interference with a licensed satellite
communications system.
DEFINITIONS
9. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's
inspection on January 23, 2010 and followed by the Bureau's May 11,
2010 letter of inquiry requesting detailed information regarding
transmissions emanating from NewCom's earth station facility in Miami,
Florida and the resulting interference.
h. "NewCom" or the "Company" means NewCom International, Inc. and its
subsidiaries, affiliates, predecessors-in-interest, and
successors-in-interest.
i. "Parties" means NewCom and the Bureau, each of which is a "Party."
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
BACKGROUND
10. Under Subpart D of Part 25 of the Rules, earth station licensees are
required to operate their facilities under certain technical
operational parameters. These rules include the control of a
transmitting station, general inter-system coordination procedures,
and particular duties regarding space communications transmissions.
11. On January 23, 2010, while investigating a complaint of interference,
the Bureau's Miami Office inspected NewCom's facility in Miami,
Florida. On May 11, 2010, the Bureau's Miami Office issued the LOI to
NewCom. The LOI directed NewCom, among other things, to answer
questions relating to transmissions emanating from NewCom's Miami,
Florida facility. NewCom responded to the LOI on June 21, 2010, and
later provided a revised response on June 28, 2010. NewCom and the
Bureau subsequently entered into settlement discussions.
TERMS OF AGREEMENT
12. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
13. Jurisdiction. NewCom agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the authority
to enter into and adopt this Consent Decree.
14. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon release, the
Adopting Order and this Consent Decree shall have the same force and
effect as any other order of the Bureau. Any violation of the Adopting
Order or of the terms of this Consent Decree shall constitute a
separate violation of a Bureau order, entitling the Bureau to exercise
any rights and remedies attendant to the enforcement of a Commission
order.
15. Termination of Investigation. In express reliance on the covenants and
representations contained herein, and to avoid further expenditure of
public resources, the Bureau agrees to terminate its Investigation. In
consideration for the termination of said Investigation, NewCom agrees
to the terms, conditions, and procedures contained herein. The Bureau
further agrees that, in the absence of new material evidence, the
Bureau will not use the facts developed in this Investigation through
the Effective Date, or the existence of this Consent Decree to
institute, on its own motion, any new proceeding, formal or informal,
or take any action on its own motion against NewCom concerning the
matters that were the subject of the Investigation. The Bureau also
agrees that in the absence of new material evidence it will not use
the facts developed in this Investigation through the Effective Date,
or the existence of this Consent Decree, to institute on its own
motion any proceeding, formal or informal, or take any action on its
own motion against NewCom with respect to NewCom's basic
qualifications, including its character qualifications, to be a
Commission licensee or authorized common carrier or hold Commission
authorizations.
16. Compliance Plan. For purposes of settling the matters set forth
herein, NewCom agrees to implement a Compliance Plan within sixty (60)
calendar days of the Effective Date to ensure NewCom's future
compliance with the Act, the Rules, and the Commission's orders. The
Compliance Plan shall include, at a minimum, the following components:
a. Technical Operations Compliance Manual. NewCom shall establish and
maintain a Technical Operations Compliance Manual within sixty (60)
calendar days of the Effective Date addressing an earth station
licensee's responsibilities for general inter-system coordination
procedures and duties regarding space communications transmissions, as
detailed below, for use by and distribution to all employees who are
responsible for such activities.
i. NewCom's Technical Operations Compliance Manual shall address, at a
minimum, the Rules governing the general inter-system coordination
procedures and duties regarding space communications transmissions found
under Part 25, Subpart D of the Rules. The Technical Operations Compliance
Manual shall also include information on the potential internal and
regulatory consequences of failing to comply with NewCom's methods and
procedures and/or the Rules.
ii. NewCom shall update and enhance the foregoing Technical Operations
Compliance Manual regarding the requirements found in subparagraph (i)
above, as appropriate and necessary.
b. Technical Operations Training Program. Within ninety (90) calendar
days of the Effective Date, NewCom shall establish and maintain a
Technical Operations Training Program addressing an earth station
licensee's responsibilities for general inter-system coordination
procedures and duties regarding space communications transmissions, as
detailed below, for all employees who are responsible for such
activities. NewCom's Technical Operations Training Program shall cover
the topics outlined in the Technical Operations Compliance Manual set
forth in subparagraph (a) above.
i. NewCom shall provide the foregoing Technical Operations Training
Program within ninety (90) calendar days of the Effective Date and will
update the training at least annually for employees who are responsible
for such activities. NewCom will also provide training to new employees
responsible for these activities during those employees' initial training
period.
ii. NewCom shall update and enhance the foregoing training regarding an
earth station licensee's responsibilities for general inter-system
coordination procedures and duties regarding space communications
transmissions found under Part 25, Subpart D of the Rules, based on
changes to the relevant portions of the Act, Rules, and the Commission's
orders, and as otherwise appropriate.
c. Compliance Officer. Within thirty (30) calendar days of the Effective
Date, NewCom shall designate an individual of the Company to serve as
the Compliance Officer for complying with Part 25, Subpart D of the
Rules, overseeing the Technical Operations Compliance Manual and
Technical Operations Compliance Training, and ensuring compliance with
the Subpart D requirements in the Rules.
d. Transmitter Control Operator. Within ninety (90) calendar days of the
Effective Date, and consistent with section 25.271(b) of the Rules,
NewCom shall ensure that a trained Transmitter Control Operator is
present on the earth station site, or at a designated remote control
point, at all times (including weekends) that transmissions are being
conducted.
e. Compliance Reports. NewCom will file compliance reports with the
Commission ninety (90) calendar days after the Effective Date, twelve
(12) months, and twenty-four (24) months after the Effective Date.
Each compliance report shall include a certification by the Compliance
Officer, as an agent of and on behalf of NewCom, stating that the
Compliance Officer has personal knowledge (i) that NewCom has
established operating procedures intended to ensure compliance with
the terms and conditions of this Consent Decree and with Subpart D of
Part 25 of the Rules, together with an accompanying statement
explaining the basis for the officer's compliance certification (ii)
that NewCom has been utilizing those procedures since the previous
Compliance Report was submitted; and (iii) that NewCom is not aware of
any instances of non-compliance. The certification must comply with
section 1.16 of the Rules and be subscribed to as true under penalty
of perjury in substantially the form set forth therein. If the
Compliance Officer cannot provide the requisite certification, the
Compliance Officer, as an agent of and on behalf of NewCom, shall
provide the Commission with a detailed explanation of: (i) any
instances of non-compliance with this Consent Decree and the Rules,
and (ii) the steps that NewCom has taken or will take to remedy each
instance of non-compliance and ensure future compliance, and the
schedule on which proposed remedial actions will be taken. All
compliance reports shall be submitted to Diane Law-Hsu, South Central
Region, Enforcement Bureau, Federal Communications Commission, 3575
Koger Center Blvd Suite 320, Duluth, GA 30096. All reports shall also
be submitted electronically to SCR-Response@fcc.gov .
f. Termination Date. The provisions of this paragraph shall remain in
effect for two (2) years from the Effective Date.
17. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to section 208 of the Act
against NewCom or its affiliates for alleged violations of the Act, or
for any other type of alleged misconduct, regardless of when such
misconduct took place. The Commission's adjudication of any such
complaint will be based solely on the record developed in that
proceeding. Except as expressly provided in this Consent Decree, this
Consent Decree shall not prevent the Commission from investigating new
evidence of noncompliance by NewCom of the Act, the rules, or the
order. Furthermore, this Consent Decree shall not limit or foreclose
any argument that may be raised by NewCom to respond to or defend
against any subsequent investigation.
18. Voluntary Contribution. NewCom agrees that it will make a voluntary
contribution to the United States Treasury in the amount of thirty
thousand six hundred dollars ($30,600) in ten equal installments. The
first contribution of three thousand sixty dollars ($3,060) will be
made within thirty (30) calendar days after the Effective Date. Each
successive contribution of three thousand sixty dollars ($3,060) shall
be due on the first day of the next nine (9) months following the
initial contribution. Payment must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payments must include the Account Number and FRN
referenced in the caption to the Adopting Order. Payment by check or
money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). NewCom will also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
19. Waivers. NewCom waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal, or stay,
or to otherwise challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues an Adopting
Order adopting the Consent Decree without change, addition,
modification, or deletion. NewCom shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. If either Party (or the United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither NewCom nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and NewCom shall
waive any statutory right to a trial de novo. NewCom hereby agrees to
waive any claims it may otherwise have under the Equal Access to
Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et seq., relating
to the matters addressed in this Consent Decree.
20. Invalidity. In the event that this Consent Decree is rendered invalid
by a court of competent jurisdiction, it shall become null and void
and may not be used in any manner in any legal proceeding.
21. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or order adopted
by the Commission (except an order specifically intended to revise the
terms of this Consent Decree to which NewCom does not expressly
consent) that provision will be superseded by such Commission rule or
order.
22. Successors and Assigns. NewCom agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
23. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Rules and the Commission's orders.
24. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
25. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
26. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
27. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
P. Michele Ellison
Bureau Chief
Enforcement Bureau
________________________________
Date
________________________________
Jaime Dickinson
President and Chief Operating Officer
NewCom International, Inc.
________________________________
Date
47 C.F.R. S:S: 25.271, 25.272, 25.273.
47 U.S.C. S:S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
See Letter from Steven DeSena, Resident Agent, Miami Office, South Central
Region, Enforcement Bureau, to NewCom International, Inc. (May 11,
2010)("LOI").
47 C.F.R. S: 25.271 - 25.284.
47 C.F.R. S: 25.271.
47 C.F.R. S: 25.272.
47 C.F.R. S: 25.273.
See LOI, supra n.1.
Letter from Troy F. Tanner, Counsel to NewCom International, to the
attention of Steven DeSena, the Miami Resident Agent Office, South Central
Region, Enforcement Bureau, Federal Communications Commission (June 21,
2010).
Letter from Troy F. Tanner, Counsel to NewCom International, to the
attention of Steven DeSena, the Miami Resident Agent Office, South Central
Region, Enforcement Bureau, Federal Communications Commission (June 28,
2010).
Federal Communications Commission DA 11-101
Federal Communications Commission DA 11-101